Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On April 1, 2020, the day the federal Families First Coronavirus Response Act (FFCRA) took effect, the U.S. Department of Labor (DOL) released temporary regulations interpreting this new law that requires private employers with 499 or fewer employees, and certain public employers, to provide covered employees emergency paid sick leave (EPSL) and emergency unpaid and paid family leave (FMLA+). In the 124-page rulemaking document, the DOL covers a lot of ground. We read all of it so we could cover the highlights for you, but be sure to revisit the regulations—especially the preamble—for areas where you have particular questions. Below we discuss how the DOL interprets the law, provisions it clarifies, and new items it did not address in its recent three rounds of Q&As.
COVERED EMPLOYERS & EMPLOYEES
An employer must provide EPSL and FMLA+ leave if it has 499 or fewer (i.e., less than 500) employees within the United States at the time an employee’s leave is to be taken. This requires an employer to maintain a “live” headcount, and the preamble to the regulations recognizes that a company with 499 or fewer employees in April may need to grant leave to Employee X, but if its payroll is over 500 in May, it can deny a request for leave from Employee Y at that time (although Employee X’s would continue to be eligible for leave).
In making this determination, the DOL makes clear the count is a pretty broad sweep, so employers should include: employees on leave; temporary employees whom they jointly employ with another employer (regardless of whether another employer maintains the jointly employed employees on its payroll); and day laborers a temporary agency supplies (regardless of whether you are the temporary agency or the client firm if a continuing employment relationship exists). Employers need not count workers who are independent contractors.
The regulations reiterate that, typically, a corporation (including its separate establishments or divisions) is a single employer so it must count all employees. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are joint employers, they both must count all their common employees.
Additionally, two or more entities are generally separate employers unless they meet the integrated employer test under the “classic” FMLA. If two entities are an integrated employer under the FMLA, then employees of all entities that make up the integrated employer count to determine employer coverage for EPSL and FMLA+ purposes.
Both of these tests are highly fact-specific and look to a series of factors, including common ownership, management, business purpose, and day-to-day operations. Insofar as these tests are not susceptible to simple analysis, employers with questions as to whether they should aggregate affiliated companies should consult counsel. Employers that are considering these issues should also be mindful of the potential impact that aggregation, or separation, might have on existing litigation, claims and investigations, either now or in the future.
Small (Fewer than 50 Employees) Business Exemption
The regulations provide that an employer, including a religious or nonprofit organization, with 49 or fewer employees, is exempt from providing FFCRA leave for child-care purposes when allowing such leave would jeopardize the viability of the business as a going concern. However, given that language in the regulations does specifically reference the exemption with respect to leave that is requested, we caution that employers should be judicious in applying the exemption, and prepare themselves to address exemption decisions with specific reference to employees and specific leave requests rather than a blanket decision on day one, or a decision that it simply takes the position that it is "exempt."
To use this exemption, an authorized officer of the employer must determine that:
- The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are no sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.
To elect this small business exemption, the employer must document that an authorized officer made this determination. The DOL advises that employers should retain those records in their files. Finally, even where a small employer chooses to exempt one or more employees, it still must display the mandatory poster.
The regulations make clear that, for EPSL purposes, all employees of a covered employer are eligible to take EPSL leave, unless they fall within the exception the regulations establish for employers of health care providers or emergency responders (or are exempt under the small employer exemption, or are certain federal employees the Office of Management and Budget exempts). With respect to FMLA+, employees employed by the employer for at least 30 calendar days are eligible for leave.
The regulations explain that an employee is employed for at least 30 calendar days where:
- the employee was on the employer’s payroll for the 30 calendar days immediately prior to the date on which the employee’s leave would begin; or
- the employee was laid off or otherwise terminated by the employer on or after March 1, 2020, and rehired or reemployed by the employer on or before December 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or terminated.
Finally, similar to FMLA “classic,” the regulations provide that, where an employee is employed by a temporary placement agency and subsequently hired by the employer, the employer must count the days worked as a temporary employee of the agency toward the 30-day eligibility period.
The regulations provide that upon return to work from EPSL or FMLA+ leave, the employee has the right to be restored to the same or equivalent position, subject to certain limitations: (a) an employee is not protected from employment actions, such as layoffs, which would have affected the employee had they not taken leave; to deny restoration of employment, the employer must be able to show that the employee would not otherwise have been employed at the time reinstatement is requested; and (b) for FMLA+ leave only, an employer may deny job restoration to certain “key” employees (as defined under preexisting FMLA regulations), if denial of restoration is necessary to prevent substantial and grievous economic injury to the employer’s operations. Note, however, that this is a designation and option that employers must exercise only through very specific steps the FMLA outlines.
In addition, the regulations explain that employers that employ 24 or fewer employees may deny job restoration under FMLA+ (but not EPSL) where: (a) the employee took leave to care for child whose school or childcare facility was closed for COVID-19 reasons; (b) the employee’s position no longer exists due to economic conditions or changes in operating conditions caused by a public health emergency; (c) the employer makes reasonable efforts to restore the employee to an equivalent position; and (D) where such reasonable efforts fail, the employer makes reasonable efforts to contact the employee for a one-year period if an equivalent position becomes available. The one-year period begins on the earlier of the date the employee’s leave concludes or the date 12 weeks after the employee’s leave began.
Health Care Provider Employee Exception
The regulations provide that employers may exclude from eligibility for EPSL or FMLA+ leave certain employees if they are health care providers. The regulations define health care provider broadly for this purpose as: anyone employed at any doctor’s office, hospital, health care center, clinic, post-secondary educational institution offering health care instruction, medical school, local health department or agency, nursing facility, retirement facility, nursing home, home health care provider, any facility that performs laboratory or medical testing, pharmacy, or any similar institution, employer, or entity (emphasis added).
The regulations’ definition includes any permanent or temporary institution, facility, location, or site where medical services are provided that are similar to such institutions. This definition includes any individual employed by an entity that contracts with any of these institutions to provide services or to maintain the operation of the facility. This also includes anyone employed by any entity that provides medical services, produces medical products, or is otherwise involved in the making of COVID-19-related medical equipment, tests, drugs, vaccines, diagnostic vehicles, or treatments. It also includes any individual that the highest official of a state or territory, including the District of Columbia, determines is a health care provider necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19 (emphasis added).
Finally, the regulations make clear that this definition is only applicable for determining employee eligibility for leave, and not for purposes of certifying a need for leave under the “classic” FMLA.
Emergency Responder Employee Exception
Similarly, the regulations provide that employers may exclude from eligibility for EPSL or FMLA+ leave certain employees if they are emergency responders. The regulations define an emergency responder as: an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility. This definition also includes any individual whom the highest official of a state or territory, including the District of Columbia, determines is an emergency responder necessary for that state’s or territory’s or the District of Columbia’s response to COVID-19.
EPSL for Full- & Part-Time Employees
Per the regulations, employees are "full" time and receive 80 paid sick leave hours in two situations. First, employees are "full" time if their employer normally schedules them to work at least 40 hours each workweek. Second, employees without a normal weekly schedule will be "full" time if the average number of workweek hours their employer schedules them to work (including leave hours they take) is at least 40 hours per workweek over the entire period of employment or the six-month period that ends when the employee takes paid sick leave, whichever is shorter.
All other employees are "part" time. In the regulations, the DOL creates a standard for employers to apply to determine how many EPSL hours they receive. Part-time employees with a normal weekly schedule receive an amount of EPSL that equals the total amount of hours worked in a two-week period. For example, if employees work 20 hours each week, they receive up to 40 hours under EPSL. For employees who lack a normal weekly schedule, the DOL advises employers to use the total hours the employee worked during the six-month period (or the entire period of employment, if shorter) before taking leave, divide that by the number of calendar days in the period, then multiple the result by 14. For example, if an employee works 520 hours in a six-month period, that roughly equates to 2.857 hours per calendar day, so, multiplied by 14, the employee receives up to 40 hours of EPSL. Note that, if at the time of hiring, the employer and employee have an agreement concerning the average number of work hours each calendar day (few, if any, will), that daily number multiplied by 14 produces the amount of EPSL the employee is eligible to receive.
FMLA+ Unpaid Period Will Be the Time an Employee Normally Works in Two Workweeks: Although FMLA+ has a “10-day” unpaid period, the DOL equates the period to two workweeks. Accordingly, if an employer normally schedules an employee to work three 10-hour shifts per workweek, "10" days will be the six days the employee normally works during a two-workweek period, after which the employee transitions to "paid" FMLA+. If employees' work schedules vary, employers base hours on a six-month lookback period or the period of employment if the employee has worked fewer than six months.
Total FMLA Leave Entitlement Amounts to 12 weeks, but EPSL Could Extend That Period: As it forecast in its earlier Q&As, the DOL confirms that FMLA+ cannot exceed a total of 12 weeks of leave during the applicable 12-month period. Any amount of FMLA “classic” leave an employee uses earlier in that same 12-month period reduces FMLA+ entitlement. For example, if during an applicable FMLA 12-month period an employee takes 4 weeks of FMLA "classic" leave, the employee has 8 weeks of FMLA+ leave left to use in that same period. Similarly, during a single FMLA 12-month period, an employee can use a combination of FMLA "classic" and FMLA+ leave, up to a maximum amount of 12 weeks.
If an employee exhausts all 12 workweeks of FMLA “classic” or FMLA+, the employee still can make use of any remaining EPSL leave.
Substitution of Accrued Paid Leave and “Top Offs”: In its new regulations, the DOL clarifies how accrued paid leave interacts with EPSL and FMLA+.
- For the two weeks (up to 80 hours) of EPSL, the employee has the sole discretion to use EPSL or any accrued paid leave the employer provides. The employer cannot dictate that employees substitute employer-paid leave during this time.
- For the initial "two weeks" of unpaid FMLA+, the employee can elect to use employer-provided paid leave, but the employer can require that this count toward overall FMLA+ leave entitlement. This means that an employee may be eligible to use EPSL during this time, and/or leave under the employer’s policy, or both, to top off to 100% of their pay.
- For the remaining 10 weeks of paid FMLA+, the employer cannot require that an employee “top off” FMLA+ with employer-provided personal leave, vacation or PTO, but the parties can mutually agree to top off. If the parties do agree, again the DOL says this does not extend the overall amount of FMLA+ leave.
Inability to Work or Telework and the Shelter-in-Place Phenomenon
To take leave under EPSL and FMLA+, employees must be unable to work or telework. The regulations distinguish situations in which no work is available from those in which a qualifying event causes an employee to be unable to work or telework. In explaining the rule, the DOL notes that if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, it does not have work for employees to perform, so employees cannot take leave; this applies even if a stay-at-home order substantially causes the closure.
For qualifying events, the regulations apply a "but for" standard: but for the qualifying event, the employee could perform work or telework the employer has for the employee. Assuming the employer has work the employee can perform, and the employee can perform this work on site or via telework, only if extenuating circumstances exist that prevent the employee from performing this work can employees use leave, e.g., serious COVID-19 symptoms. For example, if employees can only telework during a qualifying event, but the power goes out at their home, the power outage is an extenuating circumstance for which employees can use leave because they are unable to telework. Regardless of the type of qualifying event, e.g., isolation order, childcare, etc., employers must run through this analysis when determining whether an absence qualifies for FFCRA leave. Accordingly, where we later discuss how the DOL interprets or clarifies qualifying events in the regulations, we do not engage in a full-scale analysis of the process for each type of qualifying event. We will, however, provide at least one example.
Telework can occur during normal hours or at other times if the parties agree. In explaining the rule, the DOL addresses administrative challenges and how telework interacts with pre-FFCRA standards concerning when the workday begins and what constitutes "hours worked" for FLSA minimum wage and overtime purposes.
The DOL says that for FFCRA telework, the "continuous workday" (CW) rule will not apply. Generally, under the CW rule, employees are "on the clock" once they first perform tasks that are “integral and indispensable to" their “principal activity.” However, for FFCRA purposes, recognizing flexible work arrangements the parties enter, the DOL clarifies that employers are not "required to count as hours worked all time between the first and last principal activity." Instead, employers must pay employees for "all hours actually worked." For example, if during a workday while teleworking from 7 a.m. to 9 p.m., an employee performs work from 7-10 a.m., 1-4 p.m., and 7-9 p.m., the employee works 8 hours, not 14 hours.
Because such flexibility will occur with telework, the DOL reminds employees of the need to accurately record, and employers of the need to pay, all hours worked. Moreover, the DOL stresses that employers must pay employees for hours of work they know employees perform, i.e., if employees do not record all hours, and employers do not have actual or constructive knowledge that employees perform unrecorded work, payment occurs for known, recorded hours only. Because many employees may not have such flexibility generally, employers must repeatedly drill home to employees how critical it is for them to track accurately their teleworking hours.
Subject to Quarantine or Isolation Order: The regulations broadly interpret this to cover "quarantine, isolation, containment, shelter-in-place, or stay-at-home orders" a federal, state, or local government issues, including advisories that "categories of citizens (e.g., of certain age ranges or of certain medical conditions) to shelter in place, stay at home, isolate, or quarantine."
How this might play out, practically, is as follows. Does the employer have work for the employee to perform? If yes, is the business location open, so the employee can perform work onsite? If no, can the employee perform the work remotely by telecommuting? If yes, is the employee subject to a quarantine or isolation order? If yes, does the qualifying event prevent the employee from performing the work? If no, leave is not available. However, if occurrences connected to the qualifying event rise to the level of an extenuating circumstance (e.g., employee is experiencing serious COVID-19 symptoms, or the power goes out at the employee's home), leave is available.
Medical Diagnosis: The regulations broadly define symptoms, but narrowly define qualifying circumstances: employees are experiencing fever, dry cough, shortness of breath, or any other COVID-19 symptoms the CDC identifies and are unable to work because they take affirmative steps to actually obtain a medical diagnosis, e.g., making, waiting for, or attending an appointment for a COVID-19 test. In explaining the rule, the DOL says employees cannot use paid sick leave to self-quarantine without seeking a medical diagnosis. Additionally, it explains employees cannot use paid sick leave if they can telework while awaiting test results. However, if a health care provider tells employees they do not meet the criteria for testing and advises them to self-quarantine, or if they test positive for COVID-19 and a health care provider advises self-quarantine, they might be eligible to use paid sick leave for that purpose.
Health Care Provider Advises Self-Quarantine: The regulations establish a two-part test. First, a health care provider (same definition as FMLA "classic") must advise self-quarantine due to a belief the employee has, may have, or is particularly vulnerable to, COVID-19. Second, following this advice and self-quarantining, the employee is unable to work at the normal workplace or telework.
Caring for a Quarantining or Isolating Individual: The regulations define an "individual" as "an [e]mployee’s immediate family member, a person who regularly resides in the [e]mployee’s home, or a similar person with whom the [e]mployee has a relationship that creates an expectation that the [e]mployee would care for the person." The regulations exclude persons with whom employees have no personal relationship.
Caring for a Child: Where the employee requests leave to care for a child whose school or place of care is closed, the DOL adopts recently issued IRS guidance by limiting EPSL and FMLA+ only to those situations where the employee must actually care for the child and no other suitable person (e.g., co-parents, co-guardians, or the usual childcare provider) is available to care for the child during the period. If another caretaker is available to care for the child, the employee cannot use leave.
In an effort to limit the risk that an employee might spread COVID-19 to other employees, the DOL limits the use of intermittent leave for those working onsite to two main conditions: 1) that the employee and employer agree to the use of intermittent leave; and 2) such use is limited to the employee’s need to care for a child whose school or place of care is closed, or where childcare is unavailable.
In doing so, the DOL slams the door on on-site employees’ use of intermittent leave for any of the other five reasons an employee can take EPSL. Its reasoning is practical: where an employee is absent due to COVID-19 symptoms or diagnosis or is taking care of an individual in a similar predicament, it is not acceptable for the employee to take intermittent leave due to the “unacceptably high risk” that the employee might spread COVID-19 to other employees. In these situations, the DOL made clear that the employee must continue to take continuous paid sick leave each day until the employee either exhausts paid leave or no longer has a reason for leave from work.
In the case of telework, intermittent leave is available for employees who are taking EPSL or FMLA+, but again only if the employer agrees. The DOL contemplates that the employee and employer will “agree on any arrangements” for intermittent leave “that balance the needs of each teleworking employee with the needs of the employer’s business.”
Exempt Employee Absences
The regulations say taking leave does not affect an employee's exempt status. In explaining the rule, the DOL says taking intermittent FFCRA leave while receiving FFCRA paid leave will not affect whether the employer pays the employees a qualifying salary or fee.
Employee Requests to Use Leave
Perhaps not surprisingly, the DOL outlines different employee notice requirements depending on the reason for leave. For employees needing leave for school closures/childcare unavailability, and where such leave is foreseeable, employees must provide notice as soon as is practicable (consistent with “classic” FMLA standards). On the other hand, when an employee needs leave for any other reason under EPSL, the standards loosen, and employers can only require employee notice after the first workday (or part of a workday) that an employee takes EPSL. Employers must accept this notice from the employee’s spokesperson, such as a family member or other responsible party, if the employee is unable to provide such notice personally.
While many employers have policies requiring employees to make requests for various types of leave in writing, consistent with the spirit of recent case law under FMLA “classic,” oral notice of the initial need for leave under FFCRA is sufficient, as long as the employee provides enough information for the employer to determine it is an FFCRA-qualifying reason for leave. However, nothing in the regulations prevents an employer from directing employees to then follow the organization’s usual and customary procedures from that point forward, and the DOL indicates that such expectations will typically be reasonable. In any event, the DOL reminds employers that if an employee fails in some regard with respect to providing notice or supporting information or documentation, the employer should give the employee notice of the failure and an opportunity to correct the deficiency prior to denying the leave. This is consistent with FMLA case law in recent years requiring that employees have an entirely clear understanding of what employers expect of them prior to an employer denying leave for such failures.
Employee Documentation to Substantiate Leave
In the regulations, the DOL tackles some of the documentation questions employers have been grappling with since FFCRA’s enactment. Prior to being able to take EPSL or FMLA+, the employee must provide the employee's name, the dates for which the employee requests leave, the qualifying reason, and an oral or written statement that the employee is unable to work. The DOL also outlines what type of documentation or information employees must provide in support of various types of leave under EPSL/FMLA+:
- Employee subject to a federal, state or local quarantine or isolation order related to COVID-19: the name of the governmental entity that issued the Order.
- A health care provider advises an employee to self-quarantine due to concerns related to COVID-19: the name of the health care provider who advised the employee to self-quarantine.
- Employee is caring for an individual who is subject to a quarantine or isolation order or an individual who has been advised by a health care provider to self-quarantine: either the name of the governmental entity that issued the Order to which the individual being cared for is subject, OR, the name of the health care provider who advised the individual being cared for to self-quarantine.
- Employee is caring for a child whose school is closed or childcare is unavailable due to COVID-19 precautions: name of the child, name of the school, place of care or child care provider (each defined in the regulations) that has closed or become unavailable, and a representation that “no other suitable person will be caring for the child during the period” the employee is taking EPSL or FMLA+ for this reason.
There seems to be a theme within the rule that the DOL is permitting employers to require information, but perhaps not much actual documentation, particularly compared to FMLA “classic” documentation standards. The DOL then defers to the tax credit process through the IRS and states that employers may also request that an employee provide other documents in support of the FFCRA tax credits, though the DOL does not indicate further what such records may be. The DOL also confirms, as IRS guidance states, that an employer need not provide leave to employees who will not provide sufficient materials to support the tax credits.
PAYMENT FOR LEAVE
Regular Rate Calculation Period Differs from FLSA
Although the FFCRA references the FLSA regular rate, the regulations require a different calculation period. Instead of using the workweek in which employees use leave, employers must use a six-month lookback period or the entire period of employment, whichever is shorter. Alternatively, employers can use this time period and divide the average weekly regular rate by the number of hours worked each workweek.
POSTING & RECORDKEEPING
The regulations do not contain significant, new employer notice requirements for the FFCRA, other than to align with its earlier Q&A, and require that employers post on their premises in conspicuous places the FFCRA’s paid leave provisions and information about how to file a complaint with the DOL’s Wage and Hour Division for alleged violations of the FFCRA. The DOL refers to its model notice, WHD 1422 (the poster it provides on its pandemic resources page), as being sufficient notice, as long as the employer either posts it in the workplace in conspicuous places, emails, direct mails, or posts it on the employer’s internal or external website. Employers can post this in a different format than the DOL’s model poster, as long as the content is accurate and readable. Given the current remote work realities of COVID-19 for many workers, employers should ensure that employees not actually reporting to the worksite each day receive the selected notice via one of the above remote methods. As noted above in this article, the regulations clarify that, regardless of whether a small employer chooses to exempt one or more employees, it must nevertheless post this general notice.
Unlike the notice requirements of FMLA “classic,” the DOL clarifies that this general posting does not need to be in languages other than English, though the DOL has a Spanish version available. For employers FMLA “classic” does not cover, but FFCRA does, this posting satisfies such employers’ general notice obligations under the FMLA+. The DOL also comments in the preamble to the regulations that FFCRA does not require employers to provide employees seeking FMLA+ leave with the traditional FMLA notice of eligibility, rights and responsibilities, or written designation—but notes that employers may want to take advantage of their established practices for “classic” FMLA to send such notifications. The DOL does not specify any additional mandatory notifications for EPSL, though employers may certainly develop such documentation for their own recordkeeping purposes, and perhaps to make clear to employees utilizing EPSL what exactly is available to them.
To comply with the FFCRA’s paid leave mandates, employers must retain documents and information regarding EPSL and FMLA+ for four years, regardless of whether they grant or deny leave. Moreover, if the employee provides oral statements only, it is the employer’s responsibility to document those oral statements and associated information for its records for the four-year period. Employers that decide to deny school/childcare leave to an otherwise-eligible employee (either under EPSL or FMLA+) based on the small employer (fewer than 50 employees) exemption must document the determination by their authorized officer that the organization is eligible for the exemption based on the criteria the regulations establish.
To qualify for the tax credits the IRS administers, the DOL states that employers must maintain, for four years:
- Documentation to show how the employer determined how much EPSL or FMLA+ was paid to employees (including records of actual work performed, telework, and paid leave credits);
- Documentation to show how the employer determined the amount of qualified health plan expenses that were allocated to wages; and
- Copies of any completed IRS Forms 7200 (Advance Payment of Employer Credits Due to COVID-19) that the employer submitted to the IRS, and the completed IRS Forms 941 (Employer’s Quarterly Federal Tax Return) that the employer submitted to the IRS (or, if applicable, records provided to a third-party payer to meet an employer’s employment tax obligations/entitlement to the credits claimed on IRS Form 941).
FMLA+ Generally Incorporates FMLA "Classic" Protections
The FFCRA discusses only job restoration rights. In the regulations, the DOL says all pre-FFCRA FMLA "classic" protections apply to FMLA+, e.g., FMLA interference. Although FMLA "classic" remedies will be available to employees, the regulations limit private lawsuits employees can file to those against employers that are otherwise subject to FMLA “classic.”
Continuation of Health Care Coverage
The regulations state that where an employee is taking EPSL or FMLA+ leave, the employer must maintain the employee’s coverage under any group health plan on the same conditions as it would provide if the employee had been continuously employed during the entire leave period. It must maintain the same group health benefits it provides to an employee prior to taking leave while the employee is on leave. If an employer provides a new health plan or changes its existing plan while the employee is on leave, the employee gets the new or changed plan/benefits to the same extent as if they were not on leave. Changes to things like premiums or deductibles that apply to all employees in the workforce would also apply to employees on FFCRA leave, as would notice of any opportunity to change plans or benefits.
Employees are responsible for paying their portion of group health premiums they were paying prior to taking leave. Where a payroll deduction is insufficient to cover the employee’s share of the premium, an employer should look to pre-existing FMLA regulations for alternative means to obtain payment. While on leave, an employee may choose not to retain group health plan coverage, but, upon return, can have coverage reinstated on the same terms that existed prior to taking leave, without any additional qualifying period, physical examination, or exclusion of pre-existing conditions.
Finally, subject to COBRA, an employer’s obligation to maintain health benefits while an employee is on leave ceases if the employment relationship would have terminated irrespective of the employee’s leave (e.g., a business closure, or an employee’s failure to return when leave is exhausted).
Employers that Offered Additional Leave Before April 1
During the COVID-19 crisis, and prior to April 1, 2020, many employers provided employees with additional paid leave before federal law required it. The regulations make clear that, notwithstanding any leave employers previously provided, leave they must provide under the FFCRA is in addition to that leave. Additionally, the DOL makes clear that employers need not retroactively pay employees for absences that would have qualified for FFCRA leave had the law existed when the absence occurred. The DOL says employers can, however, prospectively end these voluntary additional paid leave offerings that were created for the COVID-19 crisis, but must pay employees for leave taken thereunder before the policy change takes effect.
FFCRA Leave is Personal to an Individual
The regulations clarify that EPSL and FMLA+ amounts are personal to employees, and do not change if an employee changes positions for the same employer or gains new employment for a different employer.